State of Louisiana v. Dwight Washington

STATE OF LOUISIANA * NO. 2021-KA-0061

VERSUS *
COURT OF APPEAL
DWIGHT WASHINGTON *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 542-128, SECTION “H”
Honorable Camille Buras, Judge
******
******
JAMES F. MCKAY III
CHIEF JUDGE
(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge
Edwin A. Lombard)

JASON R. WILLIAMS
DISTRICT ATTORNEY, ORLEANS PARISH
G. BEN COHEN
CHIEF OF APPEALS
ADELE M. KRIEGER
ASSISANT DISTRICT ATTORNEY
619 S. White Street
New Orleans, Louisiana 70119
COUNSEL FOR STATE/APPELLEE

SHERRY WATTERS
LOUISIANA APPELLATE PROJECT
P. O. Box 58769
New Orleans, Louisiana 70158
COUNSEL FOR DEFENDANT/APPELLANT

CONVICTIONS AND SENTENCES VACATED AND REMANDED

AUGUST 4, 2021

JFM
TFL STATEMENT OF CASE
EAL
On July 19, 2018, an Orleans Parish Grand Jury returned an indictment

charging the defendant, Dwight Washington, as follows: count one-second degree

murder of Darrell Pollard; count two-second degree murder of Terran Young;

count three-attempt to commit second degree murder of Jahon White; count four-

attempt to commit second degree murder of Bruce Pollard; count five-obstruction

of justice in connection with the second degree murder investigation. On July 25,

2018, the defendant was arraigned and entered pleas of not guilty.

Trial commenced on February 10, 2020, with voir dire proceedings and

continued through to February 13, 2020. On February 13, 2020, the jury rendered

its verdicts, finding the defendant guilty as charged on all counts. Thereafter, the

polling slips were reviewed and the court confirmed that the guilty verdicts were

rendered by virtue of eleven guilty votes and one not guilty vote.

On March 5, 2020, the date the defendant was set to be sentenced, the

defendant filed a motion for a new trial, arguing, inter alia, that he was entitled to a

new trial by virtue of the non-unanimous verdicts. On that same date, the court

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denied defendant’s motion. Thereafter, the court proceeded to sentence defendant

as follows:

In count 1 for the second degree murder of Darrell Pollard … the
[c]ourt imposes the mandatory penalty that you must serve the
remainder of your natural life in the Department of Corrections, that
sentence being without benefit of probation, parole, or suspension of
sentence. On count 2, for the indicted charge of second degree
murder of Terran Young … the [c]ourt imposes the mandatory
sentence, sentencing you to serve the remainder of your natural life in
the Department of Corrections without benefit of probation, parole, or
suspension of sentence. On count 3 for the indicted charge of
attempted second degree murder of Johan White … the [c]ourt
sentences you to the maximum of 50 years in the Department of
Corrections. That sentence is without benefit of probation, parole, or
suspension of sentence. On count 4 for the indicted charge of
attempted second degree murder of Bruce Pollard … 50 years,
Department of Corrections. That sentence is without benefit of
probation, parole, or suspension of sentence…. On count 5, [the
obstruction of justice,] the [c]ourt sentences you to 40 years,
Department of Corrections. That sentence is at hard labor. Counts 1,
2, 3, 4 and 5, are to run concurrent with each other [with] credit for all
time served from date of arrest.

Following sentencing, the defendant noted his objection to said sentences.

Additionally, the defendant filed a motion for appeal and designation of the record

on March 5, 2020, which the court granted.

STATEMENT OF FACT

Sergeant Mark McCourt (“McCourt”) stated that he was employed by the

New Orleans Police Department as custodian of records for 911 calls. McCourt

testified with regard to numerous 911 calls received on June 15, 2017,

commencing at 11:11 p.m. The calls were played for the jury and McCourt

confirmed that one of the callers described a body being found at the scene of the

shooting. On cross-examination, McCourt informed that none of the 911 callers

identified the defendant as the shooter and none speculated that the shooting could

have been attributable to a “rap war.”

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Shavine Young, the mother of one of the murder victims, testified that she

was asleep at home when notified that her nineteen-year-old son, Terran Young,

had been killed. She stated that Terran was the second of her six children and that

she had done her best to help her other children cope with the ordeal associated

with Terran’s murder. Shelia Dorsey testified that she had raised Darrell Pollard,

the other murder victim of the June 15, 2017 shooting, since he was two weeks old.

Detective David DeSalvo (“DeSalvo”) testified that on June 15, 2017, he

was employed in the “Gang Unit” of the New Orleans Police Department. On that

date, he was called at approximately 11:00 p.m. to investigate a shooting at the

intersection of Carrollton Avenue and Earhart Boulevard. DeSalvo stated that he

was one of the first officers to arrive at the scene and he witnessed a body lying on

Carrollton Avenue. Approximately fifteen minutes after he had been on the scene,

another incident was reported, a vehicle, found near University Hospital, was

riddled with bullet holes and a body was inside the vehicle.

On cross-examination, DeSalvo stated that the victim found on Carrollton

Avenue was not responsive and could not identify who shot him. At the scene

where the bullet-riddled vehicle was recovered, the victim inside the vehicle was

dead and, as such, could not identify who had shot him.

Detective Theophilus Kent (“Kent”) testified that on June 15, 2017, he was

employed in the New Orleans Police Department’s Homicide Division. On that

date, he reported to the area where the bullet-riddled car was located and found an

unresponsive male lying in the back seat. Kent testified that as a result of his

investigation he began to suspect that the shooting was associated with an ongoing

feud between two gangs, the “Ghost Gang” and the “Byrd Gang.” Further,

pursuant to his investigation, it was discovered that a second vehicle was involved;

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a “totally burned out vehicle” was discovered. It was Kent’s belief that this second

vehicle was used by the assailants and that it was intentionally set on fire. Kent

testified that both victims, Terran Young and Darrell Pollard, were members of the

Byrd Gang.

Bruce Pollard (“Bruce”) testified that he did not want to be in the courtroom

to offer testimony; admitting that he was currently serving a fifteen-year sentence.

Bruce admitted that one of the victims, Darrell Pollard (“Darrell”), was his cousin

and that he “grew up” with the other murder victim, Terran Young. Bruce also

grew up with Johan White, another shooting victim who was not murdered. Bruce

stated that before his incarceration he was a “rapper.” Bruce admitted that he

wrote a song, “Untouchable,” with a gentleman named “Tokey Hefner.” Bruce

also sang a song entitled, “Cuttin Up.” Bruce concluded his testimony by stating

that he did not see who “shot up” the car in which he was traveling on June 15,

2017.

Detective Leonard Bendy (“Bendy”) testified that he was employed in the

Homicide Division of the New Orleans Police Department and was the lead

investigator with respect to the double homicide of Darrell Pollard and Terran

Young. Even prior to the June 15, 2017 shooting incident, Bendy was involved in

the investigations of a series of homicides associated with an “ongoing gang war”

between the Ghost Gang and the Byrd Gang. One such homicide, the death of a

Ghost Gang member, occurred on January 31, 2017. The date of this particular

homicide was tattooed on the right-side of defendant’s face.

Bendy recalled receiving a call at approximately 11:20 p.m. regarding the

homicide, which occurred at Carrollton Avenue and Earhart Boulevard. Bendy

went to the crime scene where he found numerous shell casings, “[a] 9-millimeter

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and … one .40-caliber.” A firearm was also found at the scene, a “Glock 27

pistol.”

There were no eyewitnesses to the shooting; however, Bendy was advised

that there was a “secondary scene,” believed to be associated with the

Carrollton/Earhart shooting, located at the 200 block of North Johnson Street, near

the University Medical Center. A black Honda Civic was located in the 200 block

of North Johnson Street and Darrell Pollard, who was deceased, was located in the

rear of the vehicle with multiple gunshot wounds. Also discovered in the vehicle

was a “.40-caliber spent cartridge casing.”

Bendy testified that police were able to identify the two murder victims

relatively quickly. A third shooting victim, Johan White, was located in University

Hospital, suffering from bullet wounds to his hand. The fourth victim, Bruce

Pollard, was not in the hospital.

A video surveillance camera reflected what happened at the intersection of

Carrollton Avenue and Earhart Boulevard. The video showed a gold Honda

Accord pull alongside the black Honda Civic and commenced firing numerous

bullets into the Civic. Thereafter, the video showed Terran Young falling out of

the Civic after being struck by gunfire.

With the assistance of video surveillance cameras, Bendy was able to track

the gold Accord after the shooting, tracking it as it traveled on Earhart Boulevard

in a downtown direction. Once the vehicle stopped near the Calliope housing

development, a camera showed an individual, “matching the physical description

of [defendant],” exit the driver’s seat of the vehicle with an assault rifle. The

individual fitting the defendant’s description was wearing a sleeveless white

undershirt, jeans and what appeared to be Timberland boots. On his head was

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what appeared to be “a type of headdress.” The license plate on the vehicle was

XQL828.

Though an individual fitting the defendant’s description was depicted on a

video surveillance camera exiting the gold Accord with an assault rifle, the

defendant was not arrested at that point. Instead, Bendy obtained search warrants

for social media of certain individuals. Bendy explained that sometimes

information related to shooting events are placed in songs. During the

investigation, Bendy focused on a song, “Untouchable,” by Bruce Pollard. In the

song, Bendy heard multiple references to June 15, 2017, the night of the shootings.

Bruce rapped about the ongoing feud between the Ghost Gang and the Byrd Gang.

Further, Bruce made reference to the fact that “Terran fell out of the car” and that

he would have “gone back” had he known Terran Young had fallen out of the

vehicle. At that point, Bendy attempted to question Bruce but Bruce declined to

speak with him. However, pursuant to his investigation, Bendy ascertained that

Bruce was the driver of the black Civic.

Bendy also listened to a rap song by “GB White” who he later learned was

the defendant. In the song, the defendant made a reference to Bruce. The

defendant also rapped about “letting sticks fly” which Bendy explained was “a

reference to assault rifles and shooting.”

Bendy listened to a second song, “Cuttin Up,” by Bruce. In the song, Bruce

made a direct threat to the defendant, threatening an assault rifle shooting of the

defendant. Further, the song made reference to the shooting of Terran Young.

A review of the defendant’s Twitter account reflected that the defendant

responded to Bruce’s “Cuttin Up” song. The defendant threatened Bruce.

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As part of his investigation, Bendy discovered the defendant’s cell phone

numbers, 504-344-8917 and 504-577-3475, and applied for a search warrant to

attain the defendant’s cell phone records. Bendy explained that specifically what

he sought to ascertain from the records was the area where the cell phones were

located on a certain date and specific time. The records showed that at 11:13 p.m.,

the defendant’s cell phone was “hitting off” a cell phone tower at 1401 South

Broad Street, in close proximity to the Calliope housing development, an area

associated with the Ghost Gang and the area where the gold Accord was parked

following the shootings.

Thereafter, a series of photographs of the defendant pictured with other

members of the Ghost Gang were introduced into evidence. The photographs

reflected the defendant wearing clothing similar to the clothing depicted in the

surveillance camera footage of the individual exiting the gold Accord on the night

of the murders. There were pictures depicting the defendant holding an assault

rifle similar to the one the individual exiting the gold Accord on the night of the

murders was holding. A video was played for jurors which depicted the defendant

holding up a rifle which was similar to the rifle being held by the individual exiting

the gold Accord on the night of the murders. A second video was introduced

which showed the defendant “talking about killing people with assault rifles.”

Bendy testified that on June 17, 2017, a “burned out” vehicle was discovered

in New Orleans East. The vehicle was a gold Accord with a license plate number

of XQL828. Eleven “assault rifle-type casings” were recovered from the vehicle.

On cross-examination, Bendy testified that on the surveillance video

reflecting an individual exiting the gold Accord, one “cannot see his face but you

do see a subject matching [defendant’s] physical build and description.” Further,

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Bendy admitted that in the photographs submitted reflecting the defendant wearing

attire similar to the attire of the individual exiting the gold Accord on the night of

the murders, sometimes the defendant is seen wearing tennis shoes rather than

boots.

Sergeant Joseph Rees (“Rees”) testified that he was a “night shift

supervisor” with the Plaquemines Parish Sheriff’s Office. He stated that in January

2019, he, along with a fellow officer, came into contact with Jaquan Cooper

(“Cooper”). Upon looking inside Cooper’s vehicle, Rees saw a weapon, an “AR

pistol, sitting on the driver’s floorboard.” Cooper was subsequently arrested in

connection with outstanding warrants and was charged with being a felon in

possession of a firearm.

Kenneth Leary (“Leary”) testified that he was employed by the “New

Orleans Police Department’s Crime Laboratory as a Criminalist III assigned to the

Firearms Examination Unit.” After testifying with regard to his credentials, Leary

was accepted, without objection, as an expert in the field of firearms identification

and analysis. Leary opined that his examination of eight of the nine-millimeter

cartridge cases recovered from the 3000 block of Carrollton Avenue showed that

they were fired from the same weapon.

Sean McElrath (“McElrath”) testified that he was the New Orleans Police

Department’s “section chief for the Forensic Firearms Unit.” After briefly

discussing his credentials, McElrath was accepted, without objection, as an expert

“in the area of firearms and ballistics analysis and identification.” McElrath stated

that he test-fired an AR-15 assault weapon that was brought to him from

Plaquemines Parish. However, he could not ascertain whether the casings

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recovered from the “burned-out” gold Accord were fired from the weapon because

the casings were too damaged from the fire.

FBI Special Agent William Charles Williams (“Williams”) testified that he

was a member of the FBI’s Cellular Analysis Survey Team (“CAST”). After

testifying with respect to his credentials, Williams was accepted, without objection,

as an expert in historical cell site analysis.

Williams stated that he was advised that the shooting took place at

approximately 11:10 p.m. He was asked if the defendant’s phone records showed

that the defendant was in the area where the shootings occurred around 11:10 p.m.

Williams tracked the defendant’s phone records during the period between 10:45

p.m. and 11:14 p.m. At 10:45 p.m., the defendant’s cell phone “hit” off a tower

“very close to Earhardt [sic] Boulevard … within a block or two … of the old

Calliope projects….” By 11:05 p.m., the cell phone records reflected that the

phone was hitting or “pinging” off a tower in the uptown area of New Orleans.

Between 11:05 p.m. and 11:13 p.m., there was no cell phone activity. Williams

opined that based on the cell phone activity, the defendant’s cell phone could have

been at the intersection of Carrollton Avenue and Earhart Boulevard at the time of

the shooting. Williams explained:

[Defendant’s] phone … was used just to the right or to the east of the
shooting scene at 10:45. At 11:05, the phone is using a tower that
services [u]ptown…. [T]hese towers are not more than a couple of
miles apart from the 10:45 and the 11:05 time. And then by 11:13, the
phone had moved back to the north back to the tower that it had used
at 10:45.

Williams was also asked if at any time following the shooting, did the phone

records reflect travel to New Orleans East, where the gold Accord was burned.

Williams testified that by 11:40 p.m., the defendant’s cell phones “had made it to

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New Orleans East.” Williams stated that at “roughly 12:10, the phones began

utilizing towers that were closer in proximity to the burn site. And so somewhere

between 12:10 and 12:53, the phones utilized the towers that were in the burn site.”

At approximately 1:03 a.m., both phones started moving away from the area of the

burn site.

Following Williams’ testimony, the parties entered into a stipulation that

“[i]f Dr. Amanda Krausert were called to testify, she would testify that she was

employed as a forensic pathologist by the Orleans Parish Coroner’s Office in June

of 2017 and would qualify as an expert in forensic pathology.” The parties further

stipulated that Dr. Krausert would testify that on June 16, 2017, she performed

autopsies on Darrell Pollard and Terran Young and would state that “both victims

died from perforating gunshot wounds to the head and torso and that their deaths

were classified as a homicide by the Orleans Parish Coroner.” Thereafter, the State

rested.

The defendant called Detective Blaine Howard (“Howard”) to the witness

stand who testified that he was employed with the Jefferson Parish Sheriff’s Office

and that he had “no personal knowledge of the events of June 15, 2017.” Howard

stated that in March, 2018, he obtained a cell phone number, 504-494-5645, that he

believed belonged to the defendant. Howard believed that he could contact the

defendant, via the 504-494-5645 number, to purchase marijuana. However, upon

calling the cell phone number that he believed belonged to the defendant, it was

ascertained that the phone, in fact, did not belong to the defendant.

On cross-examination, Howard testified that before he obtained the 504-494-

5645 number, he obtained a cell number, 504-344-8917, the same cell number used

in investigating the June 15, 2017 shootings. Howard stated that he was able to

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contact the defendant utilizing the 504-344-8917 number. Following Howard’s

testimony, the defense rested.

ERRORS PATENT

The defendant’s challenge to his non-unanimous convictions pursuant to

Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), which

has been deemed an error patent under Louisiana law. See, e.g., State v. Monroe,

2020-00335 (La. 6/3/20), 296 So.3d 1062. As the issue is raised as one of the

defendant’s assignments or error, it shall be addressed in the discussion.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant contends the evidence was

insufficient to support his convictions. The defendant asserts the evidence

presented at trial was “wholly circumstantial” and failed to exclude every

reasonable hypothesis of innocence.

The standard for review of a claim of insufficiency of the evidence was laid

out by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979):

…the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt. This familiar standard gives full play to the responsibility of
the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Once a defendant has been found guilty of the crime
charged, the factfinder’s role as weigher of the evidence is preserved
through a legal conclusion that upon judicial review all of the
evidence is to be considered in the light most favorable to the
prosecution. (Emphasis in original).

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“Under the Jackson standard, the rational credibility determinations of the

trier of fact are not to be second guessed by a reviewing court.” State v. Williams,

2011-0414, p.18 (La. App. 4 Cir. 2/29/12); 85 So.3d 759, 771. Further, “a

factfinder’s credibility determination is entitled to great weight and should not be

disturbed unless it is contrary to the evidence.” Id. But where there is no direct

evidence presented proving one or more of the elements of the offense, La. R.S.

15:438 governs circumstantial evidence and provides “assuming every fact to be

proved that the evidence tends to prove, in order to convict, it must exclude every

reasonable hypothesis of innocence.” “Stated differently, the reviewer as a matter

of law, can affirm the conviction only if the reasonable hypothesis is the one

favorable to the state and there is no extant reasonable hypothesis of innocence.”

State v. Green, 449 So.2d 141, 144 (La. App. 4 Cir. 1984) (citing State v. Shapiro,

431 So.2d 372 (La. 1983)). “This test is not separate from the Jackson standard;

rather it simply requires that ‘all evidence, both direct and circumstantial, must be

sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable

doubt.’” State v. Hoang, 2016-0479, p.3 (La. App. 4 Cir. 12/21/16), 207 So.3d

473, 475 (quoting State v. Ortiz, 96-1609, p. 12 (La. 10/21/97), 701 So.2d 922,

930). If a rational trier of fact reasonably rejects the defendant's hypothesis of

innocence, that hypothesis falls; and, unless another one creates reasonable doubt,

the defendant is guilty. State v. Captville, 448 So.2d 676 (La. 1984).

“A reasonable alternative hypothesis is not one ‘which could explain the

events in an exculpatory fashion,’ but one that ‘is sufficiently reasonable that a

rational juror could not have found proof of guilt beyond a reasonable doubt’”

State v. Mack, 2013-1311, p.9 (La. 5/7/14); 144 So. 3d 983, 989 (quoting State v.

Captville, 448 So.2d 676, 680 (La. 1984)). Therefore, “where the evidence is

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purely circumstantial, if it does not exclude every reasonable hypothesis of

innocence, a rational juror cannot find defendant guilty beyond a reasonable doubt

without violating constitutional due process safeguards.” State v. Monds, 631

So.2d 536, 539 (La. App. 4 Cir. 1994).

La. R.S. 14:30.1 defines second-degree murder as the killing of a human

being where “the offender has the specific intent to kill or to inflict great bodily

harm.” Under La. R.S. 14:27(A): “Any person who, having a specific intent to

commit a crime, does or omits an act for the purpose of and tending directly

toward the accomplishing of his object is guilty of an attempt to commit the

offense intended; and it shall be immaterial whether, under the circumstances, he

would have actually accomplished his purpose.”

La. R.S. 14:130.1(A) defines the crime of obstruction of justice as any of the

following when committed “with the knowledge that such act has, reasonably may,

or will affect an actual or potential present, past, or future criminal proceeding”:

(1) Tampering with evidence with the specific intent of distorting the
results of any criminal investigation or proceeding which may reasonably
prove relevant to a criminal investigation or proceeding. Tampering with
evidence shall include the intentional alteration, movement, removal, or
addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows
or has good reason to believe will be the subject of any investigation
by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place of review of any
such evidence.

The knowledge requirement of La. R.S. 14:130.1(A) is met if the perpetrator

merely knows that an act “reasonably may” affect a “potential” or “future”

criminal proceeding. State v. Jones, 2007-1052, p.9 (La. 6/3/08), 983 So.2d 95,

101. “The defendant must also have tampered with evidence ‘with the specific

intent of distorting the results’ of a criminal investigation.” State v. Powell, 2015-

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0218, p.11 (La. App. 4 Cir. 10/28/15), 179 So.3d 721, 728 (quoting La. R.S.

14:130.1(A)(1)).

In the case at hand, defendant offers no reasonable hypothesis of innocence

to overcome the evidence of guilt submitted at trial. Instead, defendant attacks the

admissibility of the social media evidence submitted at trial, contending that the

social media evidence was the only evidence circumstantially connecting

defendant to the crimes. As shown below, the defendant’s assertion in this regard

is incorrect. Further, the law is clear that a review of the record for sufficiency of

the evidence “encompasses all the evidence introduced at trial, inadmissible as

well as admissible.” State v. Bolden, 2011-2435, p.2 (La. 10/26/12), 108 So.3d

1159, 1161 (per curiam).

The defendant asserts that it was not proven that he was a member of the

Ghost Gang and thus, had no motive to murder the victims who were members of

the rival Byrd Gang. However, ample evidence shows the defendant is mistaken in

this regard. First, based on the defendant’s cell phone records, the gold Accord,

which a person matching the defendant’s description was seen exiting shortly after

the shootings, was located directly before the shootings and directly after the

shootings in the Calliope housing development, the area associated with the Ghost

Gang. Second, in photographs, the defendant was pictured with known Ghost

Gang members and is shown wearing a t-shirt with a Ghost Gang insignia on it.

Detective Bendy’s testimony in this regard, i.e., his testimony regarding known

members of the Ghost Gang and that the Calliope housing development was the

area where Ghost Gang members were known to reside, was based not on any

social media evidence, but rather, was based upon his experience as a member of

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the New Orleans Police Department’s Homicide Division. It was based on this

same experience that Detective Bendy was aware of the “ongoing gang war”

between the Ghost Gang and the Byrd Gang. Detective Kent, based upon his

experience as a member of the department’s Homicide Division, testified that both

murder victims were members of the rival Byrd Gang.

Evidence placing the defendant at the scene of the shooting, as well as at the

scene where the gold Accord was burned, was provided by FBI Agent Williams

whose testimony linked defendant’s cell phones to the scene of the shootings and

the scene where the gold Accord was burned. Based on the location of the

defendant’s cell phone with the number, 504-344-8917, Williams was able to place

defendant, or specifically, his cell phone, at the intersection of Carrollton Avenue

and Earhart Boulevard at the time of the shootings. Thereafter, Agent Williams

tracked defendant’s cell phone, 504-344-8917, along with a second cell phone

associated with defendant, 504-577-3475, to the burn site. Specifically, Williams

testified that “somewhere between 12:10 and 12:53, the phones utilized the towers

that were in the burn site.”

Additional evidence linking the defendant to the crimes was the surveillance

video footage showing a suspect fitting defendant’s physical description exiting the

gold Accord with an AK-style weapon in his hand shortly after the shootings.

While the video did not show the defendant’s face, it showed his attire which was

similar to the attire the defendant wore in numerous other photographs and there

were other photographs depicting the defendant holding similar types of weapons

pictured in the surveillance footage. While defense counsel pointed out to jurors

that the defendant’s clothing in other photographs was not identical to what he was

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wearing on the night of the murders, the majority of the photographs did show him

in boots and jeans, the attire he was wearing when he exited the gold Accord, and

several photographs showed the defendant wearing a headdress, just as he was

wearing on the night of the murders.

In considering the defendant’s claim that the circumstantial evidence

presented at trial was insufficient to warrant his convictions, this Court discussed

the proper standard to review cases involving circumstantial evidence in State v.

Celestain as follows:

[T]he Louisiana Supreme Court has recognized that in cases
involving circumstantial evidence, if jurors reject a defendant’s
hypothesis of innocence, the defendant is guilty unless there is another
hypothesis establishing a reasonable doubt of the defendant’s guilt.
State v. Smith, 12-2358, p.6-7 (La. 12/10/13), 130 So.3d 874, 878. On
appellate review, the trier of fact is called upon to make certain factual
findings, whose “discretion will be impinged upon only to the extent
necessary to guarantee the fundamental protection of due process of
law.” Id., 12-2358, p.7, 130 So.3d at 878 (citing State v. Mussall, 523
So.2d 1305, 1310 (La. 1988)). As the Louisiana Supreme Court
stated, “[we] accord due deference ‘to the good sense and fair-
mindedness of jurors who have heard the evidence.’” Id. (citing State
v. Jarman, 445 So.2d 1184, 1188 (La. 1984)).

2013-1262, p.14 (La. App. 4 Cir. 7/30/14), 146 So.3d 874, 883.

In this case, the defendant put forth no reasonable hypothesis of innocence to

counter the circumstantial evidence put forth by the State, which included the cell

phone evidence placing the defendant at the scene of the shootings and the scene

where the gold Accord was burned. The State also submitted evidence,

specifically the testimony of Detectives Kent and Bendy, attesting, based upon

their experience as members of the New Orleans Police Department’s Homicide

Division, that there was a rivalry between the Ghost Gang and Byrd Gang.

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Detective Kent testified that the murder victims were members of the Byrd Gang,

and photographs of the defendant with Ghost Gang members and wearing a Ghost

Gang t-shirt, along with the fact that a person fitting the defendant’s description

exited the gold Accord, associated with the shootings, in the Calliope housing

development, an area where Ghost Gang members were known to reside, showed

that the defendant was a member of the Ghost Gang.

The evidence reflected that the defendant, as a member of a gang in an

“ongoing gang war” with a rival gang of which the murder victims were members,

had a motive for the shootings. The defendant’s cell phone records place him in

the area where the shootings took place and where the assailants’ vehicle was

burned. From the burning of the vehicle, a reasonable trier of fact could conclude

that defendant obstructed justice. Viewing the evidence in the light most favorable

to the prosecution, the State offered sufficient evidence to support the guilty

verdicts. Accordingly, the defendant’s assignment of error that the evidence was

insufficient to support his convictions is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant argues that the lack of a unanimous verdict in connection

with his convictions violates his constitutional due process rights under the Sixth

and Fourteenth Amendments to the United States Constitution. In its appellee

brief, the State concedes that the defendant’s contention in this regard “appears to

have merit,” and the State sets forth no arguments opposing defendant’s position.

At the time of defendant’s trial, in February, 2020, Louisiana law allowed

for non-unanimous jury verdicts in felony trials. In addition, at that time, the

controlling Louisiana jurisprudence consistently upheld the constitutionality of

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non-unanimous jury verdicts. See State v. Bertrand, 2008-2215 (La. 3/17/09), 6

So. 3d 738.

While defendant’s appeal was pending before this Court, on April 20, 2020,

the United States Supreme Court rendered its decision in Ramos v. Louisiana,

setting forth a new constitutional rule: the Sixth Amendment right to a jury trial,

as incorporated against the states through the Fourteenth Amendment, requires a

unanimous jury verdict to convict a defendant of a serious offense. Thus, the

United States Supreme Court ruled definitively that non-unanimous jury verdicts in

state felony trials are unconstitutional. Additionally, Ramos invalidated the non-

unanimous convictions of defendants who preserved the issue for review in cases

still on direct appeal. Ramos, 140 S.Ct. at 1406-08; see also Griffith v. Kentucky,

479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (“a new rule for the

conduct of criminal prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final”). 1

In the instant matter, defendant specifically preserved for review the issue of

the non-unanimity of his jury verdicts, having raised it in his motion for new trial.

Thus, based upon the above, the instant claim has merit. Defendant’s convictions

are vacated.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that all of his sentences are unconstitutionally excessive

and a needless imposition of pain and suffering. However, in light of the fact that

1
On May 17, 2021, the United States Supreme Court handed down its decision in Edwards v.
Vannoy, ___U.S.___, 141 S.Ct 1547, ___L.Ed.2nd___(2012), wherein it held that the Ramos
jury-unanimity rule does not apply retroactively on federal collateral review. However, state
remain free, if they choose, to retroactively apply the jury-unanimity rule as a matter of state law
in post-conviction proceedings. 141 S.Ct. at 1559.

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defendant’s convictions and respective sentences must be vacated pursuant to

Ramos, supra, this assigned error is moot. See State v. DeGruy, 2020-0290, p. 6

(La. App. 4 Cir. 10/29/20), 307 So.3d 258, 263 (“This Court, having vacated and

remanded DeGruy’s second degree murder convictions, conspiracy to commit

second degree murder conviction and the respective sentences, pursuant to Ramos,

renders this assigned error [i.e., that the sentences were excessive,] moot as to

those sentences.”2

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are vacated

as a result of the non-unanimous verdicts and the matter remanded for further

proceedings.

CONVICTIONS AND SENTENCES VACATED AND REMANDED

2
In DeGruy, the Court addressed defendant’s excessive sentence claim to the extent it related to
convictions to which he pled guilty, convictions which were not vacated by virtue of non-
unanimous jury verdicts. But, with respect to the convictions vacated pursuant to Ramos, which,
in this case, is all of defendant’s convictions, the Court found the excessive sentence issue to be
moot.

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